When Congress says "and" they mean "and." And that likely means safety-valve relief for quite a few.

        In United States v Lopez, the Ninth Circuit—with an assist from a member of the Sixth—confirmed that the First Step Act opened the so called "safety valve" a lot wider. The result is sentencing relief to Mr. Lopez, and the chance of more relief for others down the line.

        Normally, mandatory minimums mean exactly what they say: a minimum amount of time in prison that a judge has no choice but to impose upon conviction. But Congress has long provided relief for some individuals convicted of certain controlled-substance offenses. Known as the safety valve, 18 USC § 3553(f) sets out a few situations where a judge may exercise her discretion to depart from a mandatory minimum. 
       Prior to the First Step Act, the safety valve mostly stayed shut. To make a long story short, the safety valve was not an option if an individual had more than one criminal-history point. 

        But in the First Step Act, Congress tweaked the language and said the safety valve should open so long as an individual did not have “(A) more than 4 criminal history points ... (B) a prior 3-point offense ... and (C) a prior 2-point violent offense.” 18 USC § 3553(f)(1)(A)–(C) (emphasis added).
        Enter Mr. Eric Lopez. A CBP agent found Mr. Lopez in possession of narcotics. Charged and convicted on one count of importing more than 50 grams of methamphetamine, 21 USC § 952; 21 USC § 960, Mr. Lopez faced a five-year mandatory minimum. But Mr. Lopez had only one relevant prior conviction: a decade-plus-old arrest for vandalism. Somehow, Mr. Lopez served 13-months for spray painting something onto a building, making that vandalism a 3-point offense under the guidelines.
        But taking notice of the change to the safety valve’s plain language, the district court believed the new language to be somewhat ambiguous and gave Mr. Lopez the benefit of the doubt. The judge opened the valve and gave Mr. Lopez 4 years instead of 5.
The government appealed, though they conceded quite a bit of ground to Mr. Lopez.
        The Ninth Circuit saw no ambiguity in the “and” in § 3553(f)(1). If you really want a primer on how to run a plain language analysis in today's federal courts, check out Lopez, 998 F.3d at 436-437. To figure out what “and” means, the panel pages through Scalia & Garner’s greatest hits, a lot of dictionaries, and a 1990s Senate Legislative Drafting Manual. It’s impressive.
        The panel concluded that when Congress puts three items in a list and connects those three items with the word “and” the result is a list of three conditions. And all three conditions must be satisfied. Carry that rule over to the safety-valve statute, and the valve opens unless an individual has (1) more than 4 points; (2) a prior 3-point offense; and (3) a prior 2-point violent offense. 
        Having satisfied only one of those three conditions, that 3-point vandalism, Mr. Lopez prevailed. The panel affirmed the district court's decision to give four years instead of the mandatory five. And this published opinion makes plain the valve is very likely open for many more going forward. United States v. Lopez, 998 F.3d 431 (9th Cir 2021).

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